Stephen Rohde on The Federalist Society : How Conservatives Took the Law Back from Liberals

Taking Over the Judiciary: The Impact of the Federalist Society

IN 1980, three young conservative law students at Yale and the University of Chicago were fed up and decided to do something about it. Alienated by what they perceived as the "liberal" bent — engendered by the New Deal, the Great Society, and the civil rights, women's, and anti-war movements — of their law professors and fellow students, they founded the Federalist Society for Law and Public Policy Studies. Over the next 30 years, the Federalist Society would transform the very nature and ideological perspective of American law and the judiciary in significant ways.

Today, the Federalist Society claims 13,000 dues-paying members and another 32,000 lawyers and law students who are involved in its various activities. Four current members of the US Supreme Court — Chief Justice John Roberts, and Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito — are current or former members of the Society. Every single federal judge appointed by Presidents George H.W. Bush and George W. Bush was either a member or approved by members of the Society.

There are Federalist Society lawyer chapters in every major US city (as well as London, Paris, Brussels, and Toronto) and student chapters at every accredited law school in the country. With revenues of $9,595,919 in 2010, the 75 lawyer chapters sponsored nearly 300 events attended by 25,000 lawyers, and law school chapters held 1,145 events attended by more than 70,000 students. As of 2010, the Society had received over $17,320,000 in contributions from five conservative foundations, including the Koch brothers and Olin and Scaife foundations.

According to Michael Avery and Danielle McLaughlin, authors of The Federalist Society: How Conservatives Took the Law Back from Liberals:

The dockets of the federal courts are brimming with test cases brought or defended by Federalist Society members in the government and in conservative public interest firms to challenge government regulation of the economy, roll back affirmative action; invalidate laws providing access to the courts by aggrieved workers, consumers, and environmentalists; expand state support for religious institutions and programs; oppose marriage equality; increase statutory impediments to women's ability to obtain an abortion; defend state's rights; increase presidential power; and otherwise advance a broad conservative agenda.

Avery, a professor of law at Suffolk University Law School and former president of the National Lawyers Guild, and McLaughlin, an associate in the Boston office of Nixon Peabody LLP, scrupulously avoid intruding their own political and ideological biases into their description of the Federalist Society, but do include countervailing assessments. They characterize many Society members as "brilliant and sincere theorists who raise important and interesting issues" who "argue that their answers to fundamental political and legal questions preserve the essence of the American constitutional system." On the other hand, the authors observe that critics say that the overall impact of Federalist Society thought is reactionary in

glorifying private property, demonizing government intervention (particularly at the federal level), insisting that originalism is the only legitimate method of constitutional interpretation, embracing American Exceptionalism, and advocating related policies.

Consequently, the group "advocates a form of social Darwinism that has been discredited by the mainstream of American legal thought since the 1930s."

The book provides an even-handed and comprehensive account of the extraordinary rise of the Federalist Society and its widespread influence in shaping the law in a vast range of important and controversial issues facing the country. After describing the origins and growth of the Society and its ideological underpinnings, the authors devote separate chapters to the significant impact the Society has had in the areas of regulating private property, race, and gender discrimination, abortion, and sexual autonomy, and sovereignty and international law.

As the authors see it, members of the Federalist Society decided that "the easiest way to change the law is to change the judges" and consequently "they have moved the federal judiciary significantly to the right over the past thirty years" and "the law has followed." The ideological foundation for this significant movement was a deliberate elevation of the doctrine of "originalism." As described by Ed Meese, attorney general under President Reagan, according to originalism:

Judges should issue rulings based on the original understanding of the authors and ratifiers of the Constitution and the Bill of Rights, rather than on outcomes that reflect the judges' own biases or policy preferences.

Justice William J. Brennan Jr. had no patience with originalism. He called attempts to divine the intent of the framers as "arrogance cloaked in humility" and argued that it was "arrogant to pretend from our vantage we can gauge accurately the intent of the framers on application of principle to specific, contemporary questions." Brennan added that:

The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.

Within today’s Supreme Court, Justice Stephen Breyer has emerged as the most vocal opponent of originalism. In his new book, Making Our Democracy Work, Breyer rejects:

approaches to interpreting the Constitution that consider the document's scope and application as fixed at the moment of framing. [. .] [T]he Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.

In the midst of this fundamental doctrinal clash, members of the Federal Society, on and off the bench, have labored mightily to firmly install their conservative principles in American law. A deeper look at one of the five substantive areas which Avery and McLaughlin analyze in detail reveals just how far the Federalist Society has come in shifting American law to the right on the most momentous issues of war and peace.

Under the rubric of American exceptionalism, members of the Federalist Society are promoting a doctrine of "new sovereignty" which rejects international law and international institutions, including the United Nations, if they interfere with the United States' absolute right of self-determination. This doctrine holds that the president as commander in chief is the final arbiter of what is "legal" under domestic or international law and may even ignore Acts of Congress if they conflict with the president's agenda pertaining to war and foreign policy. It rejects any role for international law in interpreting the Constitution.

In the hands of Federalist Society members and associates John Yoo, Jay Bybee, and others, these conservative principles led to the infamous 2002 "torture memos" which argued that even if waterboarding and other "enhanced interrogation techniques" violated the international Convention Against Torture (to which the US is a party), the treaty would be unconstitutional as an impermissible encroachment "on the President's power to conduct a military campaign." On the basis of these memos, President Bush authorized torture.

Last April, following a two-year investigation, The Constitution Project's 11-member independent, bipartisan, blue-ribbon Task Force on Detainee Treatment, unanimously concluded that American intelligence and military personnel used interrogation techniques on suspected terrorists captured in Afghanistan, Iraq, and elsewhere that constituted torture and cruel, inhuman or degrading treatment, all of which violated both international treaties and US laws.

Asa Hutchinson, co-chair of the panel and undersecretary of the Department of Homeland Security under President Bush, wrote:

After conducting our own two-year investigation, weighing the credibility of all sources and studying the current public record, we have come to the regrettable, but unavoidable, conclusion that the United States did indeed engage in conduct that is clearly torture.

The report concludes that much of the mistreatment resulted directly from decisions made by the nation's highest civilian and military leaders, as documented in the torture memos.

Consequently, it is no longer debatable that there is a direct link between the legal theories and political policies developed by the Federalist Society and one of the most shameful chapters in American history.

The Supreme Court session that ended in June 2013 likewise reveals just how far the Federalist Society has succeeded in shaping the law to conform to its conservative principles. In Shelby County v. Holder, the Court struck down the long-standing formula for determining which jurisdictions with a history of racial discrimination must submit changes in voting rules to pre-clearance by the Justice Department. Justice Ruth Bader Ginsberg, in an unusually fiery dissent, wrote that "[h]ubris is a fit word for today's demolition" of the Voting Rights Act.

A New York Times editorial, noting that "[I]nvidious and pervasive voting discrimination has not come to an end, as Chief Justice Roberts suggested," warned:

The conservative majority on the Roberts Court issued another damaging and intellectually dishonest ruling [which] eviscerated enforcement of the Voting Rights Act, in which Congress kept the promise of a vote for every citizen.

The Los Angeles Times said of the decision:

[It is] an unjustified incursion by the court on a power explicitly conferred on Congress by the Constitution to protect voting rights, and it serves the interests of those who would make voting harder, not easier.

The conservative majority also solidified another Federalist Society sacred cow — support for big business. In three decisions, the court narrowed the scope of federal employment discrimination protections, protected the makers of generic drugs from lawsuits from consumers damaged by defects in product design, and sharply limited class-action lawsuits for violation of anti-trust laws.

According to Erwin Chemerinsky, professor and dean of the law school at the University of California, Irvine, "these cases evince a disquieting theme about the conservative majority of the Roberts court," which has "closed the courthouse doors to employees, consumers and small businesses seeking remedy for serious injuries." Doug Kendall, president of the Constitutional Accountability Center, has observed that this "term's 5-4 rulings, all favoring the chamber [of commerce], move the law sharply to the right and to the great detriment of consumers, employees, and other Americans trying to get their day in court."

In another 5-4 decision, the conservative majority held that a Florida landowner, represented by the Pacific Legal Foundation (an ally of the Federalist Society), could sue a local government agency for denying him a building permit because he refused to pay for improvements on public property several miles away. Justice Elena Kagan, in dissent, warned that the decision "threatens to subject a vast array of land-use regulations, applied daily in states and localities throughout the country, to heightened constitutional scrutiny."

The Federalist Society describes an important development in American law. Written in a clear and engaging style, the book largely avoids the deadening jargon that all too often weighs down the discussion of legal topics. Beyond the critical legal issues it explores, the book recounts the extraordinary impact a group of dedicated individuals can have in shaping public policy. Conservatives and libertarians are thrilled by the rise the Federalist Society; liberals and progressives are appalled. But no matter how you look at it, no one can ignore the impact the Society has had, and will continue to have, on the very nature of the American constitutional system.